Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P29 doc

Both state and federal rules of evidence serve as a guide for judges and attorneys so that they can determine whether to admit evidence, that is, whether to allow evidence to be observed

FURTHER READINGS

Allen, Jamie February 15, 1999 “You Move Forward:

Myrlie-Evers Williams Marches On ” CNN.com: Book

News Available online at www.cnn.com/books/news/

9902/15/myrlie (accessed July 2, 2009).

Evers, Myrlie, with William Peters 1967 For Us, the Living.

Garden City, N.Y.: Doubleday.

Evers-Williams, Myrlie, with Melinda Blau 1999 Watch Me

Fly: What I Learned on the Way to Becoming the Woman

I Was Meant to Be Boston: Little, Brown.

Evers-Williams, Myrlie and Manning Marable 2005 The

Autobiography of Medgar Evers: A Hero’s Life and Legacy

Revealed through His Writings, Letters, and Speeches.

New York: Basic Civitas Books.

EVICTION

The removal of a tenant from possession of

premises in which he or she resides or has a

property interest done by a landlord either by

reentry upon the premises or through a court

action

Eviction may be in the form of a physical

removal of a person from the premises or a

disturbance of the tenant’s enjoyment of the

premises by disrupting the services and

ameni-ties that contribute to the habitability of the

premises, such as by cutting off all utilities

services to an apartment The latter method is

known as CONSTRUCTIVE EVICTION An action of

ejectment is a legal process by which a landlord

or owner of land may seek the eviction of his or

her tenant

EVIDENCE

Evidence is any matter of fact that a party to a

lawsuit offers to prove or disprove an issue in the

case A system of rules and standards that is used

to determine which facts may be admitted, and to

what extent a judge or jury may consider those

facts, as proof of a particular issue in a lawsuit

Until 1975, the law of evidence was largely a

creature of the common law: Evidence rules in

most jurisdictions were established by cases

rather than by organized, official codifications

Legal scholars long pushed for legislation to

provide uniformity and predictability to the

evidentiary issues that arise during litigation

Following a lengthy campaign begun by the

American Law Institute, which drafted its

Model Rules of Evidence in 1942, and the

National Conference of Commissioners on

Uniform State Rules, which drafted the

Uni-form Rules of Evidence in 1953, Congress in

1975 adopted theFEDERAL RULES OF EVIDENCE The

Federal Rules of Evidence are the official rules

in federal court proceedings Most states now

also have codified rules of evidence based on these federal rules Both state and federal rules

of evidence serve as a guide for judges and attorneys so that they can determine whether to admit evidence, that is, whether to allow evidence to be observed by the judge or jury making factual conclusions in a trial

One important benchmark of admissibility

is relevance Federal Rule of Evidence 402 states,

in part, “All relevant evidence is admissible, except as otherwise provided.” The goal of this rule is to allow parties to present all of the evidence that bears on the issue to be decided and to keep out all evidence that is immaterial

or that lacks probative value Evidence that is offered to help prove something that is not at issue is immaterial For example, the fact that a DEFENDANTattends church every week is immate-rial, and thus irrelevant, to a charge of running a red light Probative value is a tendency to make the existence of any material fact more or less probable For instance, evidence that a MURDER defendant ate spaghetti on the day of the murder would normally be irrelevant because people who eat spaghetti are not more or less likely to commit murder, as compared with other people

However, if spaghetti sauce were found at the murder scene, the fact that the defendant ate spaghetti that day would have probative value and thus would be relevant evidence

Witnesses

The most common form of evidence is the testimony of witnesses A witness can be a person who actually viewed the crime or other event at issue, or a witness can be a person with other relevant information—someone who heard a dog bark near the time of a murder or who saw an allegedly injuredPLAINTIFFlifting weights the day after his accident or who shared an office with the defendant and can describe her character and personality Any competent person may testify as

a witness, provided that the testimony meets other requirements, such as relevancy

The Federal Rules of Evidence contain broad competency requirements To testify, a witness must swear or affirm that he or she will testify truthfully; possesses personal knowledge

of the subject matter of the testimony; has the physical and mental capacity to perceive accurately, record, and recollect fact impres-sions; and possesses the capacity to understand questions and to communicate understandably, with an interpreter if necessary When an issue

of state law is being determined, the state rules

of evidence govern the competency of a witness.

States that have not adopted the Federal Rules

of Evidence may have other grounds for incompetency, such as mental incapacity, im-maturity, religious beliefs, and criminal convic-tions The Federal Rules of Evidence and most jurisdictions state that jurors and presiding judges are not competent to testify in the case before them

To be admissible, testimony must be limited

to matters of which the witness has personal knowledge, meaning matters that the witness learned about using any of his or her senses

Second, the witness must declare under oath or affirmation that the testimony will be truthful

The purpose of this requirement is to“awaken the witness’ conscience and impress the witness’

mind with the duty to [be truthful]” (Fed R

Evid 603) The oath or affirmation requirement also serves as a ground for perjury if the witness does not testify truthfully Although the oath frequently invokes the name of God, the witness need not possess any religious beliefs; a secular affirmation is sufficient

Witnesses may be called to testify by any party to the lawsuit The party who calls a witness to testify generally questions the witness first, in what is known as DIRECT EXAMINATION The judge may exercise reasonable control over the questioning of witnesses in order “(1) to make the interrogation and presentation effec-tive for the ascertainment of the truth; (2) to avoid needless consumption of time, and (3) to protect the witnesses from harassment, or undue embarrassment” (Fed R Evid 611[a])

Thus, the judge may prevent a witness from rambling in a narrative fashion and may require

an attorney to ask specific questions in order to ascertain the truth quickly and effectively

The federal rules and most jurisdictions discourage the use of leading questions on direct examination These are questions that are designed to elicit a particular answer by suggesting it For example, the question“Didn’t the defendant then aim the gun at the police officer?” is a LEADING QUESTION, and normally it would not be permitted on direct examination

By contrast,“What did the defendant do next?”

is a nonleading question that would be permit-ted on direct examination In most cases, questions that can be answered with either

“Yes” or “No” are considered to be leading questions Courts generally will permit leading

questions during direct examination if the witness is adverse or hostile toward the ques-tioning party

Leading questions are permitted, and are common practice, during CROSS-EXAMINATION Once a party conducts a direct examination, the opposing party is entitled to cross-examine the same witness The scope of questions asked during cross-examination is limited to the subject matter that was covered during direct examination, and any issues concerning the witness’s credibility Attorneys use cross-examination for many purposes, including eliciting from a witness favorable facts; having the witness modify, explain, or qualify unfavor-able versions of disputed facts elicited during direct examination; and impeaching, or dis-crediting, the witness

If a witness is a lay witness (i.e., not testifying as an expert), the witness generally may testify as to facts and not as to opinions or inferences, unless the opinions or inferences are

“(a) rationally based on the perception of the witness and (b) helpful to a clear understanding

of the witness’ testimony or the determination

of a fact in issue” (Fed R Evid.) For example, a witness may not testify that she smelled marijuana unless she can sufficiently establish that she knows what marijuana smells like Lay witnesses commonly testify about such things as the speed that a car was going or someone’s approximate age, but these types of inferences are less likely to be permitted the more closely they address critical issues in the case

Expert Witnesses

“If scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact

in issue, a witness who is qualified as an expert

by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise” (Fed R Evid 702) The admissibility of expert testimony hinges on whether such testimony would help the judge or jury and whether the witness is properly qualified as an expert Expert witnesses may, and usually do, testify in the form of an opinion The opinion must be supported by

an adequate foundation of relevant facts, data,

or opinions, rather than by conjecture Thus, an expert frequently relies on firsthand or second-hand observations of facts, data, or opinions perceived prior to trial or presented at trial

during testimony or during a HYPOTHETICAL

QUESTION posed by an attorney Courts do not

require experts to have firsthand knowledge of

facts, data, or opinions because experts in the

field do not always rely on such firsthand

knowledge For instance, physicians routinely

make diagnoses based on information from

several sources, such as hospital records, X-ray

reports, and opinions from other physicians

When an expert offers a scientific fact as

substantive evidence or as the basis of his or her

opinion, the court must determine the

re-liability of the scientific fact by looking at such

factors as the validity of the underlying scientific

principle, the validity of the technique applying

that principle, adherence to proper procedures,

the condition of instruments used in the

process, and the qualifications of those who

perform the test and interpret the results Issues

frequently arise over such scientific tools and

techniques as lie detectors, DNA testing, and

hypnosis Some scientific tests, such as drug

tests, radar, and paternity blood tests, generally

are accepted as reliable, and their admissibility

may be provided for by statute

In Kumho Tire Co v Carmichael, 526 U.S

137, 119 S Ct 1167, 143 L Ed 2d 238 (U.S

Ala., Mar 23, 1999) (No 97-1709), a tire on the

vehicle driven by Carmichael blew out, and the

vehicle overturned, killing one passenger and

injuring others The survivors and decedent’s

representative brought a diversity suit against

Kumho, the tire’s maker, and its distributor

Their claim that the tire was defective relied

mainly upon the depositions of a tire-failure

analyst, whose expert testimony was to have

been that a defect in the tire’s manufacture or

design caused the blow-out The expert’s

opinion was based upon an inspection of the

tire and upon the theory that in the absence of

certain symptoms indicating tire abuse, a failure

of the sort that occurred was caused by a defect

Kumho moved to exclude the expert’s

testimo-ny, claiming that his methodology failed to

satisfy Federal Rule of Evidence 702, which does

not distinguish between“scientific” knowledge

and “technical” or “other specialized”

knowl-edge The U.S Supreme Court disagreed and

ruled that the trial judge has the power to test

the reliability of all expert testimony, whether

by a scientific expert or by an expert who is not

a scientist The court held that Rule 702 does

not address the testimony of scientists only, but

that it applies to any type of expert testimony

TheAMERICAN MEDICAL ASSOCIATION maintains guidelines for physicians who testify both as treating physician experts and as non-treating expert witnesses Many state medical associations also have guidelines for doctors who testify

Hearsay

The credibility of any witness’s testimony depends upon three factors: (1) whether the witness accurately perceived what he or she described; (2) whether the witness retained an accurate memory of that perception; and (3) whether the witness’s narration accurately con-veys that perception In order to be allowed to testify, the witness generally must take an oath, must be personally present at the trial, and must

be subjected to cross-examination These condi-tions promote the factors that lend themselves to the witness’s credibility The rule against hearsay further bolsters the oath, personal presence, and cross-examination requirements

Hearsay is a statement, made out of court, offered in court to prove the truth of the matter asserted The statement may be oral or written, or

it may be nonverbal conduct intended as an assertion, such as pointing to a crime suspect in a police line-up The act of pointing in response to

a request for identification is the same as stating,

“He did it.” Not all nonverbal conduct is intended as an assertion, of course For example,

a person usually opens an umbrella to stay dry, not to make the assertion,“It is raining.”

Sometimes, statements made out of court are not hearsay because they are not offered for the purpose of proving the truth of the matter asserted For example, suppose that a man who claims that a collision between his car and a truck rendered him unconscious files a lawsuit against the truck driver for NEGLIGENCE The truck driver wishes to introduce as evidence a statement that the man made seconds after the accident: “I knew I should have gotten my brakes fixed; they haven’t been working for weeks!” If the purpose of offering the statement

is only to prove that the man was conscious and talking following the accident, the statement is not hearsay However, if the statement is offered

to prove that the man’s brakes were not working and, therefore, that he caused the accident, then the statement is offered for its truth, and it is hearsay

The Federal Rules of Evidence state gen-erally that hearsay is not admissible evidence

The reason is that it is impractical, and in most cases simply impossible, to cross-examine the declarant of an out-of-court statement, or to have the declarant take an oath prior to making the statement Thus, the credibility of an out-of-court statement cannot be easily ascertained

But the hearsay doctrine is extremely complex

Under the federal rules, for example, most admissions of guilt are not considered hearsay and are, therefore, admissible, even though they might be stated out of court and then offered as evidence The federal rules list more than 25 exceptions to the general hearsay prohibition

These exceptions apply to circumstances be-lieved to produce trustworthy assertions

Some exceptions to the hearsay rule require that the person who made the statement be unavailable to testify at trial One example of this is when a person who is mortally wounded makes a statement about the cause of her death, just before dying Under this hearsay exception, the victim’s statement assigning guilt or causa-tion is made admissible because the victim is not available to testify at trial, and the need for the information is given greater weight than the fear that she lied Some have argued that the DYING DECLARATION exception exists at least in part because of the belief that persons would not waste their last breaths to utter a falsehood

One federal court commented, “More realisti-cally, the dying declaration is admitted because

of compelling need for the statement, rather than any inherent trustworthiness” (United States v Thevis, 84 F.R.D 57 [N.D Ga 1979])

This exception proved noteworthy in the October 1995 trial and ultimate conviction of Yolanda Saldivar, who was accused of gunning down tejana singing star Selena Quintanilla Perez in a Corpus Christi, Texas, motel Motel employees testified that Selena’s last words before collapsing and dying were, “Lock the door! She’ll shoot me again!” and “Yolanda Saldivar in Room 158.” Saldivar received a sentence of life in prison following her convic-tion of murdering the 23-year-old recording artist

Under some circumstances, the availability

of the declarant to testify is immaterial For example, the excited-utterance exception to the hearsay rule allows the admission of an out-of-court statement“relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” (Fed R Evid.803[2]) The premise

for this exception is that excitement caused by the event or condition leaves a declarant without sufficient time or capacity for reflection

to fabricate, thus the statement is considered truthful An example of an admissible excited utterance is the statement, “Look out! That green truck is running a red light and is headed toward that school bus!” Other examples of hearsay exceptions include statements of medi-cal diagnosis, birth and marriage certificates, business records, and statements regarding a person’s character or reputation

Authentication and Identification

Evidence is not relevant unless its authenticity can be demonstrated A letter in which the defendant admits her guilt in a tax-fraud trial is inadmissible unless the prosecution can first show that the defendant actually wrote it Blood-stained clothing is irrelevant without some connection to the issues of the trial, such

as evidence that the clothing belonged to the accused murderer The process of linking a piece of evidence to a case—of authenticating or identifying the evidence—is frequently referred

to as laying a foundation Under the Federal Rules of Evidence, a foundation is sufficient if a reasonable juror would find it more probably true than not true that the evidence is what the party offering it claims it to be

The most basic way to lay an evidentiary foundation is to demonstrate that a witness has personal knowledge For example, the witness may testify that he wrote the letter or that

he saw the plaintiff sign the contract or that he found the bullet in the kitchen When the evidence is an object, the witness must testify that the object introduced at the trial is in substantially the same condition as it was when

it was witnessed

Objects that are not readily iden-tifiable often must be authenticated through chain-of-command testimony In the case of a blood sample, a proper foundation would include testimony from each individual who handled the blood—from the nurse who drew the blood to the lab technician who tested it to the courier who delivered it to the courthouse for trial Unless each individual can testify that the blood sample’s condition remained substan-tially the same from the time it was drawn until the time it was offered as evidence (accounting for any loss in amount, due to testing), the court could sustain an objection from the other

side The sample then would be inadmissible for

lack of authentication

Under the Federal Rules of Evidence, some

evidentiary items are self-authenticating and

need no additional authentication before being

admitted Documents containing the official seal

of a government unit within the United States

and certified copies of public records such as

birth certificates are self-authenticating, as are

newspapers and congressional documents

Polygraph Tests

In United States v Scheffer, 523 U.S 303, 118 S

Ct 1261, 140 L Ed 2d 413 (U.S., Mar 31, 1998)

(NO 96-1133), the U S Supreme Court upheld

a military court evidence rule, Rule 707, which

prohibits the use ofPOLYGRAPH, or lie detector,

test results in military trials Scheffer, a military

investigator, took a routine urine test, which

came back positive for amphetamines Scheffer

then asked for, and was given, a polygraph test

which showed that he had no knowledge of

amphetamine use At his trial on drug-use

charges based on the urine test, Scheffer tried to

introduce evidence of his favorable lie-detector

results The court refused to admit this evidence

on the basis of military evidence Rule 707

Scheffer appealed, claiming that he should have

been able to introduce the test results as part of

his constitutional right“to prepare a defense”

The Court upheld the exclusion of the

lie-detector test on the grounds that there is too

much controversy about the reliability of

lie-detector test results, that lie-lie-detector tests might

undercut the role of the jury in assessing witness

credibility, and that lie-detector tests create too

much possibility of side issues about the

reliability of the test

The Best-evidence Rule

The best-evidence rule is a misleading name for

the courts’ preference for original writings,

recordings, and photographs over copies, when

the contents are sought to be proved The

purpose of this rule at common law was to

avoid the potential for inaccuracies contained in

handmade copies The current rule contained in

the Federal Rules of Evidence requires the use of

original writings, recordings, and photographs

(including x-rays and motion pictures), but the

rule defines original to include most

photo-copies or prints from the same negative The risk

of inaccuracies from these types of duplicates is

almost non-existent When the original evidence

is lost, destroyed, unobtainable, or in the possession of the opponent, the court will not require a party to produce the original

Judicial Notice

Some matters that are relevant to a trial are so obvious that a court will not require evidence to prove them—for example, that it is dark outside

at midnight or that April 30, 1995, fell on a Sunday To prevent wasting a court’s time, the rules of evidence permit courts to take JUDICIAL NOTICEof such matters; that is, to accept them as true without formal evidentiary proof Courts may take judicial notice of facts that are generally known to be true (e.g., that gasoline

is flammable) or facts that are verifiable from dependable sources (e.g., that Des Moines, Iowa, is in Polk County, which can be verified

on a map) As a matter of course, courts judicially notice the contents of laws of and within the United States

Privileges

It is a basic tenet in U.S jurisprudence that

“the public … has a right to every [person’s]

evidence” and that parties in litigation should avail themselves of all rational means of ascertaining truth (Trammel v United States,

445 U.S 40, 100 S Ct 906, 63 L Ed 2d 186 [1980]) Yet courts view certain interests and relationships to be of such importance that they protect those interests and relationships from certain efforts to gather evidence These protec-tions, or exclusions from the general rule of free access to evidence, are known as privileges

Federal courts recognize several types of privileges To encourage clients to communicate freely with their lawyers and to fully disclose any information that may enable their lawyers to provide appropriate legal advice, courts allow clients to refuse to disclose and to prevent any other person from disclosing confidential com-munications made when seeking legal services

This privilege applies to clients’ communications with their attorneys and with the attorneys’ office staff It protects only confidential communica-tions, not communications made to friends or acquaintances in addition to an attorney

TheATTORNEY-CLIENT PRIVILEGEapplies to the client, not the attorney Thus, the client, but not the attorney, has the right to waive the privilege and to testify regarding protected communica-tions The privilege does not terminate even when the attorney-client relationship does The

privilege does not apply to a client’s allegations

of a breach of duty by the attorney

To promote open communication within marital relationships, the rules of evidence also recognize a marital privilege In criminal cases, a person has the privilege to refuse to testify against

a spouse This privilege covers only evidentiary matters that would incriminate the non-testifying spouse (i.e., the defendant), as other matters are not likely to jeopardize the marriage relationship

The non-testifying spouse does not have the right

to assert the privilege; the privilege belongs only

to the testifying spouse

In criminal and civil cases, testimony about any confidential communications between

spouses is also afforded a privilege Either spouse, not just the testifying spouse, may assert this privilege Unlike the testifying-spouse privilege, the confidential-marital-communications privi-lege survives the termination of the marriage by death or divorce, but it does not apply to permanently separated spouses

Courts also recognize a political-vote privi-lege, a clergy-penitent priviprivi-lege, and qualified privileges for trade secrets, state secrets, and the identity of an informant Some courts also recognize a physician-patient privilege, an accountant-client privilege, and a privilege granted to journalists seeking to protect confi-dential news sources

Journalists’ Privilege

In 1972, information leaked to the

Washington Post by a confidential

informant, set the stage for the fall of a

U.S president A source they called“Deep

Throat,” told journalists Bob Woodward

and Carl Bernstein that several

impropri-eties, including a break-in at the

Demo-cratic National Committee headquarters

in Washington, D.C., had been

orches-trated by a committee to reelect President

RICHARD M NIXON News articles that

Woodward and Bernstein wrote based

on that information marked the beginning

ofWATERGATE, a scandal that led to Nixon’s

resignation in 1974 in the face of

IMPEACH-MENT More than 30 years later, in 2005,

the identity of“Deep Throat” was revealed

to be Mark Felt, a former FBI official

Reliance on anonymous news

sources can create problems when

law-yers, judges, or juries seek information

during a judicial proceeding It is a basic

principle in the U.S legal system that

“the public has a right to every [person’s]

evidence” (8 J Wigmore, Evidence § 2192

[McNaughton rev 1961]) With very few

exceptions, individuals who possess

knowledge or information that may help

a judge or jury, must testify or produce

the information in court Journalistic

privilege, where recognized, is the right

of journalists to withhold from the court certain sources, notes, or materials used

to gather news It is not among the privileges commonly recognized by courts, such asATTORNEY-CLIENT PRIVILEGE

or marital privilege

Since the 1850s, journalists have sought a privilege to protect the identity

of news sources or to protect the news-gathering process from discovery at trial As the number of reporters sub-poenaed (ordered by a court to testify) increased dramatically in the 1960s and 1970s, so did their efforts Reporters argue that to effectively gather vital information and disseminate it to the public, they must have theLEGAL RIGHT

to withhold the identity of a source

Without such a privilege, sources who fear the disclosure of their name will be less likely to talk with reporters Repor-ters who fear reprisal, or who simply do not wish to testify or hire a lawyer, will

be less likely to print or broadcast sensitive information Journalists argue that this chilling effect on reporters’

willingness to print or broadcast sensi-tive information will ultimately harm the public, which relies on reporters to

relay even the most sensitive and secre-tive news and information

In resisting subpoenas, journalists usually invoke the FIRST AMENDMENT, which prohibits laws abridging a free press Unlike theFIFTH AMENDMENT, which explicitly grants individuals the right to refuse to testify against themselves, the First Amendment contains no explicit language protecting journalists from having to testify Nonetheless, reporters have long argued that the purpose of the First Amendment is to allow the news media to freely gather and report the news, without encumbrances by the government Forcing reporters to testify, they argue, violates the First Amendment

A divided U.S Supreme Court rejected this argument in the landmark decision Branzburg v Hayes, 408 U.S 665,

92 S Ct 2646, 33 L Ed 2d 626 (1972) Branzburg involved the appeals of three reporters who had been ordered in three separate incidents to testify before aGRAND JURY (a jury convened to determine whether to indict a criminal suspect) In all three cases, prosecutors wanted to know what the reporters had observed or

to whom they had spoken One reporter

The so-called reporter’s privilege or

journal-ist’s privilege became the focus of national

attention in the aftermath of the U.S.-led

invasion of Iraq in 2003 During July of that

year, Chicago Sun-Times columnist Robert

Novak published a column disclosing that

Valerie Plame was a covert operative of the

CENTRAL INTELLIGENCE AGENCY (CIA), specializing

in gathering intelligence on WEAPONS OF MASS

DESTRUCTION(WMD) Based on Plame’s

recom-mendation, Novak revealed, the White House

had appointed Joseph Wilson, Plame’s husband,

to investigate a British intelligence report that

Iraq president Saddam Hussein had attempted

to purchase uranium from Niger for the

purpose of building a nuclear bomb After

making the trip to Niger in February 2002, Wilson concluded that the intelligence report was wrong and that Hussein had never contacted Niger about purchasing uranium

However, President GEORGE W BUSH, in his January 28, 2003, State of the Union Address, repeated the substance of the British intelligence report as a justification for the United States taking possible military against Iraq Following the invasion, Wilson wrote a series of opinion pieces in the New York Times, questioning the war’s factual basis In one piece, Wilson argued that President Bush had misrepresented the pre-war intelligence by suggesting that the Iraqi regime had sought to purchase uranium from Niger Plame and Wilson then filed a lawsuit

had written an article about the process of

converting marijuana into hashish; the

other two were covering the militant Black

Panther organization, believed to be

plan-ning guerrilla warfare to support its cause

In all three cases, the reporters had

promised to keep their sources’ identities

secret or not to divulge their observations

The reporters refused to answer certain

questions and provide certain information,

arguing that doing so would jeopardize or

destroy their working relationships with

news sources and, ultimately, their ability

to disseminate vital information to the

public The Supreme Court pointed out

that the duty to testify has roots as deep as

the First Amendment’s guarantee of a free

press, and refused to find a First

Amend-ment privilege protecting reporters from

being forced to testify before a grand jury

According to the Court in Branzburg,

the First Amendment does not override

all other public interests, or exempt

reporters from the same obligations to

testify imposed on other citizens, merely

because the news-gathering process may

become more difficult if confidential

sources are revealed.“It is clear that the

First Amendment does not invalidate

every incidental burdening of the press

that may result from the enforcement of

civil or criminal statutes of general

applicability,” the Court stated The

Court also acknowledged the importance

of a free press to the country’s welfare,

and recognized that to be effective, the

First Amendment must protect not only

the dissemination of information but the news-gathering process itself Yet, the Court made the point that a requirement

to testify or otherwise disclose informa-tion to a judicial body is not a prohibi-tion on the press’s ability to employ confidential sources The Court stated,

“[N]o attempt is made to require the press to publish its sources of informa-tion or indiscriminately to disclose them

on request.”

Justices POTTER STEWART, William J

Brennan Jr., and THURGOOD MARSHALL

dissented in Branzburg, emphasizing that the independence of the press becomes threatened when journalists are called upon as“an investigative arm of govern-ment.” When reporters are forced to testify in courtrooms, the three justices found, their constitutionally protected functions are impaired Such impairment will,“in the long run, harm rather than help the administration of justice.” The Court’s dissenters stressed that the Con-stitution protects journalists not for the benefit of journalists but for the benefit

of society “Enlightened choice by an informed citizenry is the basic ideal upon which an open society is premised, and a free press is thus indispensable to a free society,” stated the dissenting opinion

The Branzburg decision held that the First Amendment does not protect journalists from grand jury subpoenas seeking evidence in criminal cases, and that there is no testimonial privilege for reporters who witness crimes The

decision did not address whether the Constitution protects reporters’ notes, tape recordings, or other news-gathering items; whether there can be a privilege if there is no reason to think the reporter observed illegal activity; and whether reporters are entitled to a privilege in civil actions or other LEGAL PROCEEDINGS

besides grand juries

Despite the uncertainty, reporters since Branzburg have successfully invoked privi-leges In some jurisdictions, they have been helped by shield laws, which are statutes allowing journalists to withhold certain information Even in state jurisdictions without shield laws, many courts have upheld a reporter’s claim of privilege using

a three-part test championed in the Branz-burg dissent: a reporter may be forced to reveal confidences only when the govern-ment demonstrates (1) that there is PROBA-BLE CAUSEto believe that the journalist has information clearly relevant to a specific legal violation, (2) that the same informa-tion is not available by alternative means less destructive to the First Amendment, and (3) that there is a compelling and overriding interest in the information Yet other courts have interpreted Branzburg as prohibiting state courts from creating reporter privileges at all (Caldero v Tribune Publishing Co., 98 Idaho 288, 562 P.2d 791 [1977]; In re Roche, 381 Mass 624, 411 N E.2d 466[1980])

More than half the states have passed shield laws, making the reporters’ privilege

against Irve Lewis“Scooter” Libby, an assistant

to President Bush and chief of staff to Vice President Dick Cheney, for leaking the covert identity of Plame to members of the press

A federal GRAND JURY was also convened to investigate whether the leak constituted a crime, and it subpoenaed Judith Miller, a New York Times reporter who was believed to have met with Libby two days after Wilson’s allegations against Bush were published in the Times Libby was suspected of disclosing the covert status of Plame

as payback for her husband’s article, which had made the president look bad Although Miller admitted that a confidential informant had given her the information about Plame’s covert status,

she refused to identify the name of that informant and was subsequently jailed for contempt of court

by a federal district court

The U.S Court of Appeals for the District of Columbia upheld the contempt citation against Miller’s assertion of “reporter’s privilege.” In re Grand JurySUBPOENA, Judith Miller, 438 F.3d 1141 (2006) In rejecting the claim of privilege, the CIRCUIT COURT relied on the Supreme Court’s decision in Branzburg v Hayes, 408 U.S 665, 92

S Ct 2646, 33 L Ed 2d 626 (1972) In that case, the Supreme Court observed that grand juries operate under a longstanding principle that“the public has a right to every man’s evidence,” and

“the only testimonial privilege for unofficial

statutory Shield laws range in their

coverage: some protect only the identities

of confidential sources; others protect

everything from sources, notes,

video-tapes, and film negatives to the reporter’s

thought processes At least 14 states and

most federal jurisdictions recognize the

privilege based on common law, state

CONSTITUTIONAL LAW, or the First

Amend-ment These jurisdictions generally apply a

version of the three-part test outlined in

the Branzburg dissent Even where the

privilege is recognized, it is rarely absolute

Courts may order reporters to disclose

information under certain compelling

circumstances, and a reporter who refuses

to obey the court faces a charge of

contempt and fines or imprisonment

Journalists react differently to the

threat of incarceration Los Angeles radio

station manager Will Lewis, in 1973,

initially refused to comply with a federal

grand jurySUBPOENAseeking the originals

of a letter and a tape recording sent to

him by radical groups claiming inside

knowledge of the kidnapping of PATTY

HEARST Lewis was held in contempt and

sent to Terminal Island Federal Prison,

where he spent 16 days in solitary

confinement before being released

pending his appeal He lost (In re Lewis,

377 F Supp 297[C.D Cal 1974], aff’d

501 F.2d 418 [9th Cir.]) Faced with returning to prison, Lewis turned over the documents

But William Farr, a reporter for the Los Angeles Herald-Examiner, spent two months in jail rather than name his source Farr had received a copy of a deposition transcript from a prosecuting attorney in the case of serial murderer Charles Manson The judge in the case had forbidden OFFICERS OF THE COURTto publicize the case, which contained particularly gruesome facts When the judge ordered Farr to name the individ-ual who leaked the information, Farr refused (Farr v Superior Court of Los Angeles County, 22 Cal App 2d 60, 99 Cal Rptr 342[Ct App 1971])

Many reporters and their attorneys view the threat of contempt as an opportunity to educate the public on the issue In 1990, Tim Roche was a 21-year-old reporter for a Florida newspa-per, the Stuart News, when he was subpoenaed to disclose the name of a confidential source who had shown him

a sealed (confidential) court order in a

CHILD CUSTODY battle Roche refused to

comply, maintaining that he had prom-ised the source confidentiality He was found in contempt of court and received

a 30-day jail sentence

Attorneys for Roche appealed, but both the Florida Supreme Court and the U.S Supreme Court declined to hear the case Roche then soughtCLEMENCY(an act

to lower or moderate the sentence) from Governor Lawton M Chiles, of Florida Chiles refused thePLEAfor clemency, but offered Roche three hundred hours of

COMMUNITY SERVICE as an alternative to jail Roche declined the offer, stating that

he would not compromise his principles,

as he had done nothing wrong The governor retorted that he also would not compromise his principles, and that no one is above the law On March 16, 1993, Roche entered the Martin County Jail, where he served 19 days National publicity surrounding Roche’s plight led

to the introduction and passage of a Florida bill designed to protect reporters and their confidential sources Chiles, however, vetoed the Tim Roche Bill on May 14, 1993

Vanessa Leggett holds the dubious distinction of being the journalist incar-cerated for the longest period of time in

Journalists’ Privilege

(Continued)

witnesses that is rooted in the federal constitution

is the FIFTH AMENDMENT privilege against

com-pelled self-incrimination.” In the final analysis,

the circuit court said it could not “seriously

entertain the notion that the FIRST AMENDMENT

protects a newsman’s agreement to conceal the

criminal conduct of his source, or evidence

thereof, on the theory that it is better to write

about a crime than to do something about it.”

No other federal court has expressly

recog-nized a reporter’s absolute privilege to resist

disclosure of a confidential source during grand

jury proceedings In the handful of federal

jurisdictions where courts recognize a qualified

privilege for journalists to maintain their sources’

confidentiality, the party seeking disclosure can overcome the privilege by a showing of rele-vance, need, and the unavailability of the information from other, non-journalist sources

At the state level, more than half of the states have passed legislation establishing journalist-related privileges of varying scope and strength

In addition, many state courts have interpreted their state constitutions as affording journalists the right not to reveal confidential informants in certain circumstances But like the qualified privilege recognized in some federal jurisdictions, the privilege afforded journalists by state courts and legislatures can be overcome by a showing of compelling need for the information coupled

United States history over such an issue

In 2001 and 2002 Leggett spent 168 days

in federal detention in Texas, a state

without a shield law, for refusing to

comply with a sweeping subpoena for

confidential source materials Leggett

had been working on a nonfiction book

about the killing of Houston socialite

Doris Angleton, who was found shot to

death in April 1997 Mrs Angleton’s

millionaire husband, Robert, was accused

of paying his brother, Roger, to kill his

wife Both brothers were charged with

capital MURDER In the course of her

research, Leggett conducted a series of

prison interviews with Roger Angleton,

who subsequently committedSUICIDE

Leggett initially turned over tapes of

her interviews with Roger to a grand

jury However, after Robert Angleton was

acquitted in state court, a federal

investi-gation into his activities was launched In

November 2000, the FEDERAL BUREAU OF

INVESTIGATION (FBI) contacted Leggett

about becoming an informant She

declined, citing a possible loss of her

integrity and objectivity as a reporter,

and expressed a concern over the loss of

confidentiality with her sources Leggett

was then subpoenaed to testify in front of

the grand jury She agreed to do so after

the FBI assured her she would not have

to reveal the sources of her information

However, the federal grand jury

sub-poenaed all of Leggett’s tape-recorded

conversations with anyone she had

interviewed about the Angleton case

She claimed reporter’s privilege pro-tected her from being forced to disclose confidential sources On July 6, 2001, U.S District Judge Melinda Harmon ruled that the Fifth Circuit does not recognize such a privilege as protecting a journalist from divulging confidential or nonconfidential information in a crimi-nal case Leggett was ruled in contempt, and on July 20, 2001, was ordered imprisoned without bail for 18 months

or until termination of the grand jury

In August 2001 while avoiding the question of whether Leggett is a journalist entitled to a reporter’s privilege (the government had argued she was not), the Court of Appeals for the Fifth Circuit upheld the ruling that no reporter’s privilege exists against a grand jury subpoena In November 2001 the same court declined to reconsider the case or release Leggett on bond until she had exhausted her appeals On January 2,

2002, Leggett’s attorney filed an appeal

on her behalf to the U.S Supreme Court

Two days later, Leggett was released after the federal grand jury completed its term,

in compliance with her original sentence

Leggett’s ordeal raised several impor-tant legal issues, including the definition of who is and who is not a journalist for purposes of claiming the privilege, the extent to which journalists are able to protect confidential sources in stories relating to criminal proceedings, the differences among state shield laws, and the lack of shield protection under federal

law Leggett also proved that journalists will risk jail sentences to protect their reputation as well as their sources: a reporter who is known to have identified

a source after promising confidentiality may have a difficult time obtaining information from other sources in the future

Opponents of the reporters’ privi-lege, however, argue that journalists who ignore requests for evidentiary informa-tion breach other important societal interests For example, theSIXTH AMEND-MENT guarantees a criminal DEFENDANT

the right to a fair trial This right is lost when a reporter who possesses informa-tion that may help prove the defendant’s innocence refuses to testify The same argument applies to society’s interest in prosecuting criminals, who may go free when incriminating evidence is withheld

by a journalist

FURTHER READINGS Fargo, Anthony 2003 “Evidence Mixed on Erosion of Journalists ’ Privilege.” News-paper Research Journal 24 (spring) Kopel, David B., and Paul H Blackman 2002.

“Abuse of Power: Jailing Journalists.” National Review (January 22).

“Summer Mystery: Why Jail Vanessa Leggett?”

2002 Center for Informational Freedom Available online at www.cfif.org/htdocs/ freedomline/current/america/free_line_ summer.htm (accessed Mar 31, 2010) CROSS REFERENCE

Freedom of the Press.

Evidentiary Objections

A

B

t every trial or hearing requiring the admission

of evidence, attorneys have the duty to object

to evidence that the rules of court deem

inadmissi-ble Objections must be made in a timely fashion, as

soon as the witness or opposing party attempts to

improperly introduce evidence An attorney who

fails to immediately recognize and object to

inadmissible evidence faces serious

conse-quences: the evidence may be admitted for the

judge or jury to consider, and should the case be

appealed, the appellate court will allow it to stand

as admitted On the other hand, an attorney who makes frequent objections to proper, admissible evidence runs the risk of alienating the jury or angering the judge A trial lawyer therefore must learn to quickly recognize and correctly object to inadmissible evidence

Once an attorney objects, the judge must decide whether to sustain the objection and disallow the evidence, or overrule the objection and permit the evidence To assist this decision, the attorney must generally tell the judge the legal basis for the objection

Objections to Questions

Calls for an irrelevant answer The answer to the question would not make the existence of any consequential fact

more or less probable

Calls for an immaterial

answer

The answer to the question would have no logical bearing on an issue in the case

Is asked of an incompetent

witness

The witness is disqualified by statute from testifying, owing to age, lack of knowledge, or mental illness

Violates the best evidence

rule

The original document, rather than testimony, contains the best evidence

Calls for privileged

communication

The information sought is privileged communication, such as that between attorney and client, physician and patient, or husband and wife, and is barred from disclosure

Calls for a conclusion The question improperly asks the witness to reach a legal conclusion, which is a

job reserved for the judge or jury

Calls for an opinion Generally, only expert witnesses may render their opinions; lay witnesses must

testify only regarding their observations

Calls for a narrative answer Witnesses must respond concisely to individual questions, not give a long, rambling

explanation

Calls for hearsay The answer would be inadmissible hearsay

Is leading The questioning attorney may not frame a question in such a way that it suggests

the answer

Is repetitive (or has already

been asked and answered)

The question has already been asked and answered

Is beyond the scope On cross-examination, questions normally may not address matters not covered on

direct examination

Assumes facts not in

evidence

Part of the question assumes that certain facts are true, when such facts have not been admitted into evidence or their existence is in dispute

Is confusing (or misleading or

ambiguous or vague or

unintelligible)

A question must be posed in a manner that is specific and clear enough that the witness reasonably knows what information the examiner seeks